On January 11, Saudia Arabia’s Shura Council approved the establishment of a public defender program that will appoint lawyers to indigent defendants at the state’s expense. This reform measure follows on the heels of a series of recent efforts geared towards advancing judicial reform through restructuring judicial institutions and introducting new programs and initiatives aimed at professionalizing the judicial sector. In February 2009, King Abdullah bin Abdul-Aziz passed amendments that appointed a new, less conservative chief of the Supreme Judicial Council (SJC) and formed a Supreme Court composed of nine heads of courts of appeals. Nevertheless, these reform efforts, while welcome, will not bring about the change necessary to uproot a judicial culture that systematically denies defendants’ rights due to its dependence on the arbitrary decision-making power of judges and high level government officials.
The kingdom’s efforts have been carried out as part of a judicial reform process announced by the government in October 2007 that sought to streamline and restructure the country’s ailing judicial system through a series of measures set out in 2007 amendments to the Law of the Judiciary and the Law of the Board of Grievances. These amendments set up specialized labor and commercial courts. They also moved to increase judicial independence by shifting the highest legal powers from the widely-disparaged SJC to a Supreme Court with the power to hear appeals and transferring the administrative authority to oversee the courts, judicial appointments, and matters of discipline and training from the Ministry for Justice to the SJC. A provision of the law granting the executive the power to interfere in the judiciary was also rescinded. At this time, the government committed US$1.8 billion to build the specialized courts and implement training programs for the new court’s judicial officers.
This reform plan, while welcome, must be viewed in concert with the persistent injustices that plague the Saudi judiciary. Within the criminal justice system, defendants’ rights are consistently and systematically denied as a result of both deficiencies in Saudi law and the excessive power granted to Saudi judges. Extended pretrial detention is common, and defendants are frequently denied access to a lawyer and left in the dark about the charges against them. This is especially the case for Saudis detained on terrorism or political charges, who numbered 2,000 in 2009. Trial procedures are also severely flawed. Defendants do not enjoy the presumption of innocence and are often prevented from presenting evidence, while lawyers are occasionally barred from defending their clients in court. Most alarmingly, Saudi Arabia lacks a penal code, which enables judges to determine criminality based on their own discretion, often in an inconsistent manner that is especially alarming considering the severe punishments that can accompany crimes. Saudi justice is predominantly based on a particularly strict interpretation of Sharia law, which provides for extreme punishments such as flogging, in addition to a body of “Basic Law,” which is subordinate to the authority of the king and the religious establishment. Death sentences can be handed down by judges in cases involving rape, murder, offenses against God, and also those cases that the judge, in his own opinion, believes merit capital punishment. Meanwhile, members of the royal family enjoy almost complete impunity in both civil and criminal courts.
Given the incompatibility of the Saudi judicial framework with most international conceptions of due process protections, a systemic overhaul including codification of criminal law and the training of a new generation of judges would need to take place before the Saudi judicial system can truly be considered reformed. Technocratic changes are undoubtedly a salutary first step, but while new courts and training programs may serve to reduce judicial backlogs and modernize the system, they will fail to achieve real change if the prevailing judicial culture remains the same. Furthermore, the reform efforts focus only on civil courts, leaving the realm of criminal law, which is most in need of reform, untouched. The establishment of a public defender program will do slightly more to uphold the rule of law by safeguarding the rights of defendants. However, even if defendants now enjoy the right to be provided with a lawyer if unable to pay, this provides little guarantee that they will be granted a fair trial in a system where the personal opinions of the judges and the king prevail over codified, standardized justice. The new reforms will not deny the king his ability to influence and interfere in high-profile cases; he will also retain his authority to appoint the heads of the SJC and the Supreme Court, along with his power to reject the SJC’s recommendations for judicial appointments. Most importantly, he will remain the highest judicial authority in the land.
In some countries, technocratic reforms-often undertaken with donor assistance-mark an important first step, particularly when resources are extremely scarce or conflict has left judicial institutions in chaos. However, neither of these conditions applies to Saudi Arabia. Likewise, without political will to implement far-reaching changes, judicial reform often flounders or reaches a maximum level well below what’s necessary to achieve equality before the law. There is little indication that the necessary political will exists in Saudi Arabia to bring about such comprehensive change. Indeed, the fact that the implementation of even technocratic reforms efforts, which have been announced several times since 2005, has lagged serves as evidence that deeper shifts remain in the distant future. Finally, in societies like Saudi Arabia with more entrenched judicial norms, transforming judicial culture is a wrenching process. For now, average Saudi citizens and others caught up in the country’s judicial net can only hope that, however slowly, the wheels of reform in the kingdom are finally beginning to turn.